Court of last resort

Carla Del Ponte tells reporters at 2013 press conference in Geneva that the ICC should probe Syria war crimes

Fabrice Coffrini · AFP · Getty

(1), responsibility for over 90% of civilian deaths caused between March 2011 and March 2017 lies with the regime. The SNHR is a member of the International Coalition for the Responsibility to Protect; this contested principle, expressed in the 2005 UN World Summit Outcome document, stipulates that a state has primary ‘responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ and that the international community should use every appropriate means to protect civilians, including recourse to force under the auspices of the UN Security Council.

Everyone in Syria is on the bad side. The government has perpetrated horrible crimes against humanity, and the opposition is now made up of extremists and terrorists
Carla Del Ponte

Bashar al-Assad’s regime is subject to EU and US sanctions, travel bans and asset freezes; and sanctions affect 67 Syrian state institutions, such as the Central Bank of Syria. There is also an oil embargo, and restrictions on investment and exports. But no international criminal proceedings have been initiated against Syria’s political elite.

Yet there is no lack of evidence: from the start of the uprising in March 2011, the Centre for Documentation of Violations (CDV) and the Syrian Centre for Media and Freedom of Expression, created respectively by the lawyers and human rights activists Razan Zaitouneh and Mazen Darwish, have provided the international community with data on torture and forced disappearances in the Syrian regime’s secret detention centres.

Zaitouneh, who won the 2011 Sakharov Prize for Freedom of Thought, was abducted in December 2013 with four other CDV members in eastern Ghouta. Opposition networks accuse the Army of Islam, which controlled Ghouta, of being behind their disappearance. Darwish and 13 colleagues were arrested and tortured by the Syrian intelligence services. He was freed in August 2015, the year he won the Unesco World Press Freedom Prize. The UN High Commissioner for Human Rights in 2013 (2) found: ‘Enforced disappearances were employed by the government to silence the opposition and spread fear amongst relatives and friends of demonstrators, activists and bloggers.’

‘Overwhelming proof’

In 2015 a former military police photographer known as ‘Caesar’ fled Syria with 53,275 digital images that proved systemic mass torture and execution in Syrian jails. By examining these photographs, Human Rights Watch (HRW) has identified 6,786 people who died in detention (3) — ‘genuine and overwhelming proof of crimes against humanity,’ said HRW’s Nadim Houry. In February 2017 Amnesty International estimated that between 5,000 and 13,000 detainees had had been hanged in Saydnaya central prison (4).

Beth Van Schaack, professor of human rights at Stanford, has highlighted the paradox that ‘even when war crimes are clearly recognised, it is not always easy to find a court in which they can be tried.’ In May 2014 Russia and China blocked France and Lithuania’s motion to refer serious crimes committed by all parties in the Syrian conflict to the International Criminal Court (ICC). As Syria has not ratified the ICC’s Rome Statute (5), only a UN Security Council resolution can authorise ICC jurisdiction over its territory (6).

Consequently, the last resort against impunity is the principle of ‘universal jurisdiction’, which allows a national court to try serious international humanitarian law violations committed in another country. ‘The Syrian situation could bring recognition that this is not an alternative, but another, complementary, facet of the international criminal system,’ said Joël Hubrecht of France’s Institut des Hautes Etudes sur la Justice.

This is the aim of the Commission for International Justice and Accountability (CIJA), established in 2012 by Stephen Rapp, former US ambassador-at-large for war crimes issues (an ironic brief given the US’s unwillingness to allow its nationals to be tried abroad on such charges), and Bill Wiley, a former member of the ICTY and ICC prosecutors’ offices. The CIJA is funded by western countries (7) and keeps the location of its headquarters secret. Wiley explained that, through the efforts of 50 investigators based in Syria and neighbouring states, ‘the CIJA has managed to get 700,000 official documents out of Syria, which prove the existence of a chain of decision-making that goes all the way to the top of the Syrian state concerning systematic torture in prisons.’

Besides its own investigators, the CIJA has trained hundreds in war crimes investigation techniques, and can use evidence collected on the ground to help national jurisdictions in their investigations. ‘We work with 12 states in Europe and North America which, under the principle of universal jurisdiction, can prosecute any war crimes or crimes against humanity suspect who is present on its territory. In 2016 these states provided a list of 409 suspects, against whom we have prepared charges,’ Wiley said.

Crime against humanity?

In October 2016 Franco-Syrian engineer Obeida Dabbagh and the International Federation for Human Rights (FIDH) referred the case of the forced disappearance of Dabbagh’s brother and nephew to the Paris prosecutors’ specialist unit for crimes against humanity and war crimes. In November 2013 Dabbagh’s relatives were taken to Mezzeh prison, one of the Syrian regime’s most brutal, and never heard of again. Dabbagh recognised his brother’s face among Caesar’s images. FIDH lawyer Clémence Bectarte emphasised the importance of this case: ‘Hitherto, universal jurisdiction had been used to pursue former members of rebel and jihadist groups for terrorism. No prosecution had targeted figures in the Syrian regime despite the overwhelming evidence of the crimes they’ve committed.’

The first war crimes trial of a member of the opposition army, held in Sweden in February 2015, resulted in Mouhannad Droubi, a refugee and former member of the Free Syrian Army, being sentenced to eight years in prison. In February 2017 Haisam Omar Sakhanh, a former rebel fighter and asylum seeker in Sweden, was sentenced to life in prison for his role in the murder of seven Syrian soldiers in Idlib.

This March a complaint was filed for the first time against members of the Syrian government, in Spain. Maite Parejo of Madrid law firm Guernica 37 said: ‘The CIJA had identified a Spanish victim. Eight solid months of investigation followed before the complaint was filed.’ The plaintiff was a Syrian woman with Spanish citizenship, who had identified her brother, Abdulmuemen al-Haj Hamdo, among Caesar’s photos. His dead body had been photographed in detention centre 248. In Germany, lawyer and former detainee Mazen Darwish and six other Syrian victims of torture submitted a complaint against six officials of the Syrian regime.

CIJA investigators have also identified 49 people believed to have held Yezidis in slavery, and 34 ISIS leaders (8), after atrocities against the Yezidi minority in Sinjar province (Iraqi territory bordering Syria). The UN Commission of Inquiry believes ISIS is guilty of genocide against the Yezidis. In February 2016 the Christian organisation Chredo filed a complaint in the French courts accusing ISIS of crimes against humanity committed against Iraq and Syria’s Christian minorities.

In December 2016 the UN General Assembly supported these initiatives by establishing ‘an International, Impartial and Independent Mechanism [IIIM] to Assist in the Investigation and Prosecution of those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011’ (9). French judge Catherine Marchi-Uhel, former head of chambers at the ICTY, was appointed to lead the IIIM, and EU high representative for foreign affairs Federica Mogherini later promised €1.5m of EU funding: ‘Justice for the victims is key for an effective and inclusive reconciliation process in Syria. This is why those responsible for war crimes need to be held accountable, and as soon as possible.’

With fresh peace talks due to start in Geneva in October, the UN special envoy for Syria, Staffan de Mistura, has called on the opposition to be ‘realistic enough to realise they did not win the war.’ Former US ambassador to Syria Robert Ford said: ‘Assad has won and he will stay [in power]. He may never be held accountable’ (10). ‘Justice can take a very long time,’ FIDH lawyer Clémence Bectarte said; and Obeida Dabbagh complained that, despite testifying before the French court last year, ‘nothing has happened. It’s at a standstill’ (11). A Spanish judge ruled that the Spanish courts had no authority to try the case brought by Guernica 37 in July. The lawyers are now preparing an appeal.

(5) Syria is one of 32 states that have signed but not ratified the statute; others include the US, Russia and Israel. States that have not even signed include Saudi Arabia, China, Turkey and Indonesia.

(6) The court may also have competence if the accused and the victim are both nationals of an ICC signatory country.